One of the bills on the agenda of Parliament this year is the Regulatory Responsibility Bill (RRB).
Although it sounds like one of the dullest and most insignificant laws to be debated in Parliament, it is actually an important piece of legislation.
In a Guest Paper for Maxim Institute, Dr Richard Ekins and Chye-Ching Huang of the University of Auckland argued that the largely ignored RRB has the potential to change the constitutional balance of New Zealand law-making.
It would introduce a set of principles with which legislation should comply.
Judges would be given the power to check legislation and declare whether or not the law fits with the “”Principles of Responsible Regulation,” which fall under the headings: Rule of Law, Liberties, Taking of Property, Taxes and Charges, Role of Courts, and Good Law-making.
Beyond the judiciary
Ekins and Huang argued that this would involve judges stepping out of their orthodox role into doing a job they are not equipped for; a job that is supposed to belong to the elected Parliament.
According to them, judges would also have power to re-interpret laws to make them more consistent with the principles. They said that the RRB also had the potential to politicise civil servants, who will be asked to state whether proposed laws comply with the principles, and that the principles it sought to entrench were not necessarily the best principles anyway.
They said Parliament should not pass the RRB.
Under the RRB, the courts would not be able to overturn laws passed by Parliament, but it is likely to increase their influence on law-making.
For starters, courts will ultimately decide what the principles mean.
The Government would be under pressure to change a statute, if the courts declared it to be inconsistent with the principles,
These principles would function as a yardstick and standard for all laws, somewhat like the Bill of Rights Act.
Due diligence needed
Such legislation is very significant and should not be made without careful consideration, complete confidence in the principles and clarity that such law is absolutely necessary.
Ekins and Huang argued that not enough consideration had occurred, that the principles are not orthodox, and that the necessity for the RRB has not been established. The Bill proposes significant legislative surgery without having worked out exactly whether there is an illness and if so where it lies.
The current RRB is actually an adjusted version of an earlier Bill that was introduced in 2007 with some tentative support from MPs from a range of parties.
But the Commerce Committee rejected that Bill and said a high-level expert Taskforce was needed to look into “the options for improving regulatory review and decision-making processes, including legislative and Standing Orders options, but not limited to the options that were placed before them.”
Unfortunately, that Taskforce was also given the job of drafting a new bill. It was therefore assumed from the outset that legislative change was needed when there was a host of other ways to improve law-making.
Essentially, the RRB seems to be a case of good intentions that have gone amiss.
The intention to improve law-making is a good one, but the RRB is significantly flawed in its design.
The Government has just announced that another bill with the same name will be introduced and sent to Select Committee this year.
Whether it is an improvement remains to be seen. Most importantly, other options for improving law-making should be canvassed and considered.
